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Daily Compliance Item 5/23/14- Current Event

NCAA asks that O’Bannon trial be moved to February 2015

USAToday.com

The NCAA on Tuesday asked that the impending trial of an anti-trust case relating to the use of college athletes’ names and likenesses and the association’s limits on what major-college football and men’s basketball players can receive for playing sports be delayed until February 2015, when it can be tried at same time as a related case concerning use of college sports themed video games.

However, its request to U.S. District Judge Claudia Wilken is largely based on a legal argument that Wilken seemed to reject during a hearing last Thursday.

It is unclear whether the NCAA’s latest argument will be enough to persuade Wilken to change her mind and delay the anti-trust trial from in its scheduled start date of June 9. Indeed, earlier Tuesday, lawyers for the anti-trust plaintiffs filed a proposed pre-trial schedule built around a June 9 trial date. In doing so, they wrote that they had discussed the proposed schedule with the NCAA’s attorneys and: “The NCAA does not object to the schedule proposed … while reserving all rights and objections to the scheduled June 9 trial.”

The NCAA’s expression of those objections revolves around what the association argues are overlapping issues between the anti-trust case, in which the lead plaintiff is former UCLA basketball player Ed O’Bannon, and the video-game case, in which the lead plaintiff is former Arizona State and Nebraska football player Sam Keller.

Although currently joined with the O’Bannon case, the Keller case – as a practical matter – is a separate proceeding. The Keller case involves a different legal theory: personalities’ right to control the use of their names, images and likenesses, also known as the right of publicity. It also is focused almost entirely on video games, while the O’Bannon case involves video games and an array of other ways in which athletes’ names and likenesses are used in college sports marketing, merchandising and broadcasting.

Most critically for the purpose of Tuesday’s filing, the Keller case involves a monetary damages claim and would involve a jury while the O’Bannon case has been narrowed to a bid for an injunction that will be decided Wilken. The NCAA is arguing that elements of the O’Bannon case related to video games will have to be heard by the jury in the Keller case, so a ruling that Wilken makes in the O’Bannon case could affect how a jury rules in Keller case. That, claims the NCAA, would result in a violation of its Seventh Amendment right to an un-encumbered jury hearing of its case.

The NCAA is pursuing this line of argument so vigorously that its Tuesday filing did not even address its prior request that Wilken either sever all evidence and claims related to video games from the O’Bannon case or delay it.

Tuesday, the NCAA wrote, in part, “even severance of the videogame claims will be insufficient to avoid Seventh Amendment violations.”

But, according to a transcript of last Thursday’s hearing – which occurred without arguments as detailed as those in the NCAA’s filing Tuesday – Wilken said in response to NCAA lawyer Glenn Pomerantz: “Well, here’s the thing. I just don’t see a Seventh Amendment issue here. … In terms of a separate case, just because there happens to be some overlap in issues, that just doesn’t raise the Seventh Amendment in any way.”